All in a day's work

IT'S almost three years since the Civil Procedure Rules (CPR) came into force, changing for ever the litigation landscape in England and Wales. Since then, mediation has fought an uphill struggle to gain favour within shipping circles. And it appears to have won. Recent figures from CEDR (Centre for Effective Dispute Resolution) indicate that court-referred mediations in the shipping industry have risen by 100 per cent in the last year. With mediation clauses appearing more and more in commercial maritime contracts, such as charter parties, insurance policies, LOF 2000 and even the new BIMCO Standard Ship Repair Contract, the rate of growth looks set to continue.

Although a successful mediation primarily relies on an experienced mediator and the willingness and participation of the parties involved, expert witnesses can have an important role to play. For example, it is not unusual for each party to invite a consultant surveyor to attend the mediation to assist with technical issues in the case. But just how much do expert witnesses, such as surveyors, know about the mediation process, and what can mediators do to maximise their contribution?

Awareness of mediation is now growing significantly in all sectors, but it is important for expert witnesses themselves to understand the mediation process. Most importantly, the mediator needs to be sure that the expert witness appreciates the difference between arbitration, litigation and mediation.

Awareness of mediation is now growing significantly in all sectors, but it is important for expert witnesses themselves to understand the mediation process.

Preparation is key. The aim of mediation is to arrive at a settlement, ideally within one day, so there's no opportunity for going away and coming back with the answers tomorrow. Surveyors, used as expert witnesses, should ideally have completed all their investigations and formed their views prior to the mediation.

The mediator needs to ensure that the expert witness also understands the mediator's role in the process. The mediator is a facilitator rather than a judge or adjudicator, and is there to help the parties arrive at their own solutions to what are, after all, their own disputes. The mediator does not give rulings on technical or legal issues.

Drop-in mediation

INTERMEDIATION, a mediation service provider specialising in the insurance market, has set up weekly consultation clinics held at the IUA offices and at Lloyd's, in London. The clinics, which are staffed free of charge, give people the opportunity to meet confidentially with those well versed in the mediation process to answer questions and provide further information. These clinics follow a series of highly informative and successful mock maritime mediations held in London by the IUA and Lloyd's.

For more information contact
Tom Grove at Intermediation
Tel. +44 (0)20 7600 4909
e-mail: supp...@intermediation.com
David Taylor at the IUA
Tel. +44 (0)20 7617 4444
e-mail: davi...@iua.co.uk
Kate Furnell at Lloyd's
Tel. +44 (0)20 7327 8336
e-mail: kate...@lloyds.com

While there are no procedural rules, each mediator decides the appropriate process for the particular dispute. Some mediators, where expert witnesses are present, have found it useful to have a separate meeting with the witnesses away from clients and lawyers. Primarily, this will enable the mediator to explore areas of common ground and carry out some constructive reality testing. It is also useful to discourage one-upmanship. Being face to face with their client all day, it may be all too tempting for surveyors, for example, to use the mediation to try and impress.

As most mediations seek to settle within one day, time is of the essence. Candour, therefore, is very important. Mediators may urge expert witnesses to be willing to concede if they do not have the expertise to comment on a particular issue. Trying to answer something without the necessary background knowledge will do little more than waste time and frustrate the parties and mediator alike. The expert witness should take comfort from the fact that anything discussed during the mediation is completely confidential and cannot be repeated afterwards. In fact, the mediation agreement itself imposes confidentiality on clients, lawyers, experts and mediator alike.

However, expert witnesses, such as surveyors, can benefit greatly from taking part in mediations. It is an excellent opportunity for them to develop a closer relationship with their client. And, with the shipping industry now making more and more use of mediation, being able to offer experience of the mediation process is likely to be attractive to potential clients too. Not least, the speed of mediation means the witness may expect to be paid much faster than would be the case if having to await protracted litigation.

The last eighteen months have seen the pace of acceptance of mediation by the shipping industry quicken markedly. Maritime arbitrators now recognise the value of mediation as an effective alternative to arbitration, and many leading maritime law firms have produced their own excellent guides to mediation and ADR in general.

The availability of mediators with a maritime background has also greatly increased. CEDR, Intermediation, the Panel of Independent Mediators (PIM), the Arbitration and Commercial Initiative (ACI), the London Maritime Arbitrators Association (LMAA), and the Maritime Solicitors Mediation Service (MSMS), are just some of the bodies offering lists of experienced mediators willing to intervene in maritime disputes.

Expert witnesses, such as surveyors, have a role to play in successful mediation. It is important, however, that expert witnesses are fully prepared and fully understand the process and their role in it.

Ask the panel

LAST year, the shipping industry took a big stride forward in its use of mediation. But it is not only statistics from bodies such as CEDR that prove how mediation has gained favour in the maritime field. The availability of mediators with a specialist maritime background has also significantly increased during the last few years. One such source for specialist maritime mediators is the London-based Maritime Solicitors Mediation Service (MSMS).

MSMS started life almost two years ago when Ben Leach of Sinclair, Roche & Temperley, Jonathan Lux of Ince & Co, and Jane Andrewartha of Clyde & Co got together to discuss ways of providing mediation services to the maritime industry. "MSMS initially met with some scepticism due to the competitive nature of maritime law," says Ben Leach. "But the industry now recognises the need to offer good mediation services." Today, MSMS offers a panel of approximately twenty mediators, all leading practitioners in the field of maritime law.

For more information on the service, contact
Ben Leach
+44 (0) 207 452 4260
or visit the Arbitrators and Mediators section on the Admiralty Solicitors Group website at www.admiraltysolicitorsgroup.com.